My friend, federal Judge Harold Baer Jr., in a new book recounts seven vignettes illustrating what happens to the rule of law when political forces undermine the independence of the judiciary; Judges Under Fire: Human Rights, Independent Judges, and the Rule of Law (ABA Publishing 2011). His point is that without independent judges citizens lack protection from arbitrary governmental decisions. Independent judges alone can counter the forces of official arrogance and tyranny.
Judge Baer need not belabor his point; he has lived it: ten years as a State Supreme Court Justice and eighteen as a federal district court judge in the Southern District of New York. Literally thousands of litigants and lawyers have appeared before Judge Baer, and can attest to his independence of mind, a formidable judicial presence, and hard work. No judge currently sitting on the state or federal trial bench publishes more written opinions than does Judge Baer.
Not everyone agrees with Judge Baer all the time of course, but that is his point. Of Judge Baer’s seven vignettes, the one with the most impact is Judge Baer’s own experience when, in 1995, he suppressed 34 kilos of cocaine, 2 kilos of heroin, and the videotaped confession of a woman delivering the drugs. This was not a popular opinion, and, to avoid losing the case, the police had to produce substantially more evidence on rehearing than it had produced during the original hearing.
Judge Baer, for more than sixteen years, has supervised the Benjamin decree overseeing prisoner rights at Rikers Island. In this capacity Judge Baer has compelled the City to focus on such matters as fire safety, cleanliness and access to lawyers and law books. I have written elsewhere that some judges handling similar prison cases have been too independent and crossed the line to become partisans, but that too is Judge Baer’s point. Judges are supposed to be an independent force protecting prisoners and others under state control, an argument which he made directly in a law review article criticizing my position. See 52 n.y.l. sch. l. rev. 3 (2007-8).
Judge Baer is now a senior judge, but continues to act with independence. In 2010 Judge Baer helped start a reentry program to help ex-offenders get started and avoid being rearrested after their release from custody.
Ross Sandler